Category Archives: Labor Unions

Understanding Decisions in State Pension Systems: A System Framework

Source: Gang Chen, The American Review of Public Administration, Vol. 48 no. 3, April 2018
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From the abstract:
State governments establish pension systems to provide retirement benefits to public employees. State governments as sponsors, state legislatures as policy makers, and public-sector unions as representatives of public employees may exert considerable influence over the decisions made in pension systems. This study applies a system framework to examine these influences. It focuses on four decisions in pension systems: benefits, employer contributions, employee contributions, and the asset smoothing period. The findings show that changes in the short- and long-term financial conditions of a state government have different influences on pension decisions, and that legislatures and public employee unions play important roles that affect these decisions.

Teacher Strikes Are Spreading Across America With No End in Sight

Source: Josh Eidelson, Bloomberg, April 2, 2018

One month after a teachers’ “wildcat” strike ended with a deal to hike pay for all West Virgina state employees, teacher strikes are spreading fast across the country, with no clear endgame in sight.

In Oklahoma, teachers Monday made good on their threat to shutdown hundreds of schools throughout the state, preventing students from taking tests that are required by the end of the school year to ensure federal funding. In Kentucky, schools are closed as well—many because of spring break, others because teachers have swarmed the state capitol building in Frankfort. And in Arizona, teachers last week gathered at the statehouse in Phoenix with buttons reading “I don’t want to strike, but I will.”  

In each case, teachers are pushing Republican governors and GOP-controlled legislatures to hike their pay, saying declining real wages threaten to drive staff out of the public school system. Educators see leverage in tight private sector labor markets and inspiration in West Virginia, where strikers defied union leaders by holding out for a better deal. They’re reviving the tactics of an earlier era: In the five years which followed World War II, as teachers felt left behind amid crowded classrooms and accelerating private sector wage growth, there were around 60 teacher strikes across the U.S.—many without legal protection or official union support…..

The Only Way to Survive Janus

Source: Alexandra Bradbury, Labor Notes, March 30, 2018

The snows were still flying, but for unionists, spring came early this year. West Virginia’s teacher uprising burst onto the scene like rhododendrons opening: first one walkout, then another, and before you knew it a statewide strike was in full bloom.

The strikes were born at the grassroots, and that’s how they spread. Classroom teachers passed the word on Facebook, organized school votes, and rallied at the capital. Union leaders followed their members, but never took the reins.

No one seemed much concerned that public sector strikes are illegal in West Virginia. “What are they going to do, fire us all?” said Jay O’Neal, treasurer for the Kanawha County local.

It didn’t take long for the spirit to spread to underpaid teachers in three other states—thus far.

Their actions drove home a point that’s crucial for anyone who wants to see the labor movement survive. What’s required is members organizing themselves like those teachers did.

The Effect of Collective Bargaining Rights on Law Enforcement: Evidence from Florida

Source: Dhammika Dharmapala, Richard H. McAdams, John Rappaport, University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 831, Last revised: January 27, 2018

From the abstract:
Growing controversy surrounds the impact of labor unions on law enforcement behavior. Critics allege that unions impede organizational reform and insulate officers from discipline for misconduct. The only evidence of these effects, however, is anecdotal. We exploit a quasi-experiment in Florida to estimate the effects of collective bargaining rights on law enforcement misconduct and other outcomes of public concern. In 2003, the Florida Supreme Court’s Williams decision extended to county deputy sheriffs collective bargaining rights that municipal police officers had possessed for decades. We construct a comprehensive panel dataset of Florida law enforcement agencies starting in 1997, and employ a difference-in-difference approach that compares sheriffs’ offices and police departments before and after Williams. Our primary result is that collective bargaining rights lead to about a 27% increase in complaints of officer misconduct for the typical sheriff’s office. This result is robust to the inclusion of a variety of controls. The time pattern of the estimated effect, along with an analysis using agency-specific trends, suggests that it is not attributable to preexisting trends. The estimated effect of Williams is not robustly significant for other potential outcomes of interest, however, including the racial and gender composition of agencies and training and educational requirements.

Public Unions Under First Amendment Fire

Source: Tabatha Abu El-Haj, Drexel University Thomas R. Kline School of Law Research Paper No. 2018-W-01, February 28, 2018

From the abstract:
Unions today are under First Amendment fire, with the compelled speech doctrine as the weapon of choice. Conservative interests are waging a legal war against agreements that include “fair-share service fees,” under which public-sector unions are permitted to charge non-union members to pay their share of the costs of collective bargaining. Espousing libertarian theories of free speech doctrine, the National Right to Work Legal Defense Foundation and its allies maintain that fair-share service fees, at least in the context of public-sector unions, constitute a form of political speech, and that laws mandating their payment by non-union members violate the First Amendment’s prohibition against compelled speech. The Supreme Court is poised to accept this position, having granted certiorari in Janus v. American Federation of State, County & Municipal Employees, Council 31, a case that threatens to overrule the Court’s longstanding acceptance of the constitutionality of fair-share service fees.

Notwithstanding the superficial appeal of the compelled speech argument, this Article argues that pro-union interests have plenty of cover within the First Amendment’s freedom of association doctrine. Viewing Janus and its ilk through an associational lens demonstrates the fallacies that lie behind doubts concerning the constitutionality of such agreements. Although it is doubtful that the Supreme Court will reaffirm the constitutionality of fair-share service fees this term, it is important to air such arguments in order to head off potentially even more significant First Amendment attacks on unionism that are currently underway and to articulate a theory of the First Amendment that remains consistent with the basic New Deal compromise that leaves matters regarding labor policy to our legislatures, where they belong.

Whose Money Is It Anyway: Have We Been Wrong About Agency Fees All Along?

Source: Aaron Tang, Harvard Law Review Forum, March 9, 2018

From the abstract:
In Agency Fees and the First Amendment, Professor Benjamin Sachs offers a pair of novel arguments for why the Court should pause before invalidating public sector union agency fee agreements throughout the country.

First, he argues that the money sent to unions to offset their bargaining costs is better viewed as the government employer’s money than as the employees’. Collective bargaining agreements force employees to turn the money over to the union on pain of losing their jobs, after all, and so the workers never have a “genuine choice” whether to make the payment at all. That, Sachs explains, should lead us to “treat agency fees as a direct payment from employer to union.”

Second, Sachs argues that the money might instead be better understood as the union’s all along. But for the wage premium that unions bring about for their workers, the argument goes, the fees that unions receive would not exist — and so the money is properly viewed as the union’s property from the outset.

These arguments are among the best defenses of agency fees that I have seen. Ultimately, however, both arguments are susceptible to counterattack for reasons discussed in Parts I and II herein. In a final concluding part, I express my agreement with Sachs on another point: the twenty-two states that currently permit agency fee agreements in the public sector can undo the impact of an adverse outcome in Janus by authorizing government employers to reimburse unions directly for their bargaining costs. It is this legislative alternative that, in my view, warrants the greatest attention from labor proponents in the coming years.

Union Co-Ops and the Revival of Labor Law

Source: Ariana R. Levinson, Cardozo Journal of Conflict Resolution, Forthcoming, 2018, Date Written: March 16, 2018

From the abstract:
Union worker-owned cooperatives (union co-ops) offer a means to combat growing income and wealth inequality, create jobs, and recirculate money in the communities in which they are located. This article contributes to the academic literature about cooperative economics, worker ownership, and labor relations in two distinct ways. First, it relies on original author-collected data from interviews of those involved in establishing Our Harvest, an urban farm in Cincinnati, to discuss the issues involved in establishing a union co-op. Our Harvest was the first union co-op created because of a 2009 partnership to foster union co-ops in the United States. Second, the article addresses the labor law issues involved in establishing a union co-op. The issues include whether worker-owners are covered by the National Labor Relations Act, whether a co-op is required to bargain about worker ownership with the union representing its employees, whether a union co-op can require its employees to join a union, and how union co-ops can use interest-based collective bargaining. The article suggests ways that unions can legally support and finance union co-ops, provides an appendix of legal services, and includes tables to simply complex legal issues. At its best, the article will contribute to the scaling up of union co-ops and a concurrent revival of labor law that enables a more equitable economy for all.

The Power of Place

Source: Michael M Oswalt, The Cambridge Handbook of U.S. Labor Law: Reviving American Labor for a 21st Century Economy (Richard Bales & Charlotte Garden, eds.) (CAMBRIDGE UNIV. PRESS, Forthcoming). March 22, 2018

From the abstract:
While asking voters to make electoral decisions in spaces owned and curated by an interested party would be perceived as outlandish in a political context, labor law encourages it. This chapter presses for reform by highlighting cutting-edge electoral field research, backed by established work on context, memory, and decision-making, suggesting that voting in what is effectively the employer’s campaign headquarters is profoundly preference distorting. That change is possible is highlighted by the reality that although so-called “on-site” voting has long been the National Labor Relations Board’s practice, nothing about it is legally compelled. In fact, the law requires only that polling places be picked on a case-by-case basis through a variety of factors like convenience and integrity. The problem, however, is that non-binding administrative guidance makes workplace voting effectively automatic. Though the guidelines have proved surprisingly durable, the case for rewriting them has never been stronger. Doing so is important not simply to reclaim representation elections from the margins of democratic practice, but to initiate a modern era of neutral-site, mail, and even internet-based voting.

Sexual Harassment and Solidarity

Source: Marion G. Crain, Kenneth Matheny, Washington University in St. Louis Legal Studies Research Paper No. 18-03-04, March 26, 2018

From the abstract:
In the waning months of 2017, Americans endured an almost daily barrage of news reports describing sexual harassment by powerful men in entertainment, media, politics and law. While sexual harassment had been headline news before — most notably, during the 1991 Anita Hill-Clarence Thomas debacle — never had so many victims joined hands and come forward demanding change. The media spotlight presented a tremendous opportunity to reframe sexual harassment from an individual, personal and idiosyncratic instance of sexual desire to a common abuse of gender and economic power affecting millions of working women and men on a daily basis. Feminist legal scholars have known for years that expectations about appropriate gender roles create an environment where sexual harassment functions to protect male privilege. But the message that sexual harassment is a systemic feature of workplace gender inequality never reached the general public. Instead, the mainstream media’s systematic focus on sexual harassment as a twisted manifestation of male sexual desire grabbed headlines and implied that when the harasser is discharged, the story ends. But sexual harassment is about much more than men behaving badly. It is a structural problem linked to unequal pay and occupational segregation by sex.

One might think that labor unions would come forward as advocates for such a large segment of workers suffering economic disadvantage in the workplace. Yet despite the frequent use of the word “solidarity” in media reports about #MeToo, organized labor was conspicuously absent from the dialogue. While union leaders made public statements denouncing sexual harassment and promised to redouble union efforts to eradicate it, most disclaimed legal responsibility for preventing and addressing sexual harassment in the workplace. Not all the blame for labor’s passive stance can be laid at labor’s doorstep, however. Unions are hamstrung by a legal structure that creates a fundamental role conflict where they represent a workforce that includes both potential harassers and victims, and NLRA protection for worker concerted action for mutual aid has been cabined by courts and the Board to the point that labor’s tradition of solidarity is barely recognizable.

What, then, are the prospects for engaging unions in combating workplace sexual harassment? And how could a more proactive role for labor be realized within the existing legal structure? The answer is both deceptively simple and complex: unions must take sexual harassment seriously. This means not only cleaning labor’s own house, but dedicating resources to efforts in partnership with feminist, civil rights and “alt-labor” groups in a coordinated campaign to challenge sexual harassment at the worksite and sectoral levels, modeled on the Fight for $15. A new, more collaborative understanding of solidarity will be essential. Unions should dedicate legal expertise to translating solidarity into labor law, pressing for an understanding of concerted activity for mutual aid that includes eradicating sexual harassment for the benefit of all workers. Finally, if ensuring redress for victims of sexual harassment were at the front of union consciousness, unions could invoke that goal as a lever to challenge employer rules that tend to silence efforts to raise rights-consciousness among victims or undermine claims assertion, such as rules prohibiting discussion of workplace investigations and arbitration clauses banning class claims. Ultimately, challenging sexual harassment could re-brand labor unions and offer an opportunity for partnerships with their social justice allies that would capture hearts and minds.